ELECTRONICALLY FILED 3/22/2013 9:23 PM 47-CC-2010-001164.00 CIRCUIT COURT OF MADISON COUNTY, ALABAMA JANE C.

SMITH, CLERK

IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA

STATE OF ALABAMA, v. WILBERT JAMES SMITH, Defendant.

) ) ) CASE NOS: CC-2010-1164;1165;1166 ) ) EVIDENTIARY HEARING REQUESTED )

MOTION FOR JUDGMENT OF ACQUITTAL, OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL

Comes Now the Defendant, Wilbert James Smith, and files this motion for judgment of acquittal, or, in the alternative, motion for new trial, and, in support thereof, states the following: THE FACTS 1. On January 21, 2009, Defendant was arrested in the murders of Ronnie Pugh Jr. and Bertjenski Jamel Peterson and charged with murder made capital because two or more persons will killed by one act or pursuant to one scheme or course of conduct, a violation of Ala. Code (1975) 13A-5-40(A)(10). 2. On February 12, 2010, a Grand Jury indicted Defendant on one count of said charge and two additional counts of murder made capital because Defendant had previously been convicted of another murder within 20 years preceding the instant offense charged, violating Ala. Code (1975) 13A-5-40(A)(13). Specifically, the indictment stated that Defendant intentionally caused the death of Pugh and Peterson by shooting them with a pistol. 3. Defendant was imprisoned for more than four years pending trial. 4. On February 11, 2013, a jury trial began and lasted for multiple days. At trial, the State presented the following evidence in its case-in-chief:

a. There was testimony that the victims were bound, gagged, and shot during an apparent home invasion and that the cause of death was homicide. b. There was testimony that several blood droplets were located at the scene and DNA was collected for forensic examination. c. There was expert testimony that tests of approximately four blood droplets collected at the scene were matched to Defendants DNA. However, there was no corroborating evidence placing Defendant at the scene of the murders on the date in question. d. A Madison County jail inmate, indentified by Defendant as Trinyell Coats, testified that the residence where the victims were killed was, in fact, a drug house, suggesting that the motive for the murders was robbery. Coats further testified that he and victims sold drugs from the location, and that he had been at the scene with one of the victims on the day of August 28, 2003. Coats further testified that he left the residence and thereafter placed a call to a cell phone of one of the victims. Coats stated that the victim answered the call and, during their conversation, stated What up Coop? to a visitor who arrived at the residence. Finally, Coats testified that he returned to the residence later that day and entered to the house, whereupon he found the bodies of the victims. e. There was no testimony from any witness regarding the efforts to indentify the visitor named Coop. Furthermore, the State did not present any testimony regarding the law enforcements efforts to indentify the individuals who may have placed calls to or received calls from the victims cell phones on the day of the murders.

f. There was expert testimony that bullets were extracted from the bodies during autopsy. The bullets were identified as being fired from a .9mm firearm and a .45 cal. firearm. g. There was evidence that a .9mm firearm was found in the possession of Coats at the scene. There was further evidence that a .45 cal. firearm was recovered from a vehicle located at the scene. A third firearm, a .38 cal., was recovered from one of the victims. h. There was no evidence of any ballistic testing conducted on the bullets extracted from the bodies of the victims in an effort to match those bullets to the firearms recovered at the scene. Moreover, there was no evidence connecting the Defendant to any of the firearms recovered at the scene. i. Finally, improper statements were made to the jury concerning Defendants prior murder conviction, despite the pre-trial joint stipulation between the parties that no such statements would be made to the jury. 5. Once the state rested its case, the defense moved for directed verdict, arguing that the case should be dismissed because the state had failed to prove the elements of the crime as charged in the indictment. The Court denied the motion. 6. The defense put on no witnesses and presented no evidence. The defense rested its case, and renewed its motion for directed verdict. Again, the Court denied the motion. 7. Thereafter, the Court instructed the jury on the applicable law. The Courts jury instructions included an instruction on complicity, pursuant to Ala. Code (1975) 13A-2-23. The given instruction was inconsistent with the charges as stated in the indictment, in that the

indictment failed to state that Defendant procured, induced, or caused another person to commit the offense, or that he aided or abetted such other person in committing the offense. 8. The jury deliberated for several hours, during which jurors sent questions to the Court regarding the Courts instruction on complicity. After receiving further instruction from the Court on said charge, the jury returned a verdict of guilty on all counts. 9. On February 20, 2013, Defendant was sentenced to life without parole in the state penitentiary. 10. Thereafter, Defendant timely filed his Motion for New Trial, or, in the alternative, Motion for Judgment of Acquittal. See Ala.R.Crim.P. 20.3(b)(1), (2)(c); Ala.R.Crim.P. 24.1(b). I. MOTION FOR JUDGMENT OF ACQUITAL 11. Defendant moves this Honorable Court for judgment of acquittal based on insufficiency of the evidence. 12. Defendant was convicted solely on DNA evidence purportedly placing him at the scene of the crime. However, there was no corroborating evidence placing Defendant at the scene when the murders occurred. Furthermore, there was no evidence connecting Defendant to any purported murder weapons used in the offense. 13. Defendant maintains that he was convicted, based on said evidence, under a theory of accomplice liability, because there was no evidence identifying Defendant as the shooter in this case in order to support the charge of intentional murder, as specifically stated in the indictment. 14. Furthermore, Defendant maintains that he was convicted under accomplice liability based on his purported presence at the scene, which was established solely on the purported match between DNA recovered at the scene and Defendants DNA previously stored in a State database.

15. Defendant maintains that he was not present at the scene at the time of the murders. Assuming, without conceding, that the DNA evidence presented was sufficient to establish his presence at the scene, mere presence at the scene of a crime is insufficient evidence of knowing participation in the crime charged. The evidence of knowledge must be clear and not equivocal. Jones v. State, 481 So. 2d 1183, 1184 (Ala.Crim.App. 1985). 16. In Gamble v. State, the Alabama Court of Criminal Appeals explained the requirements of proof for establishing the criminal liability of an accomplice in a capital offense: Aid and abet comprehend all assistance rendered by acts or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary. Jones v. State, 174 Ala. 53, 57, 57 So. 31 (1911)(quoted in Radke v. State, 292 Ala. 290, 292, 293 So.2d 314 (1974)). If the jury is convinced beyond a reasonable doubt that the defendant was present with a view to render aid should it become necessary, the fact that the defendant is an aider and abettor is established. Jones, supra; Raiford v. State, 59 Ala. 106, 108 (1877). The culpable participation of the accomplice need not be proved by positive testimony, and indeed rarely is so proved. Fuller v. State, 43 Ala.App. 632, 198 So.2d 625. Rather, the jury must examine the conduct of the parties and the testimony as to the surrounding circumstances to determine its existence. Miller v. State, 405 So.2d 41, 46 (Ala.Cr.App.1981); Watkins v. State, 357 So.2d 156, 159 (Ala.Cr.App.1977), cert. denied, 357 So.2d 161 (Ala.1978). 17. In the instant case, the jury was presented with no evidence to allow an examination of the conduct of Defendant, nor was there testimony concerning any surrounding circumstances tying Defendant to this offense. Again, the only evidence presented of that nature was the purported DNA match. 18. Defendant maintains that evidence presented at trial was not sufficient to establish a match between DNA collected at the scene and his DNA stored in the database. 19. Even assuming that such evidence was sufficient to establish Defendants presence at the scene at some unknown point in time, under the above-cited authorities, Defendants mere presence at the scene was not sufficient to establish his participation in the crime charged.

20. Thus, Defendant prays that this Court grant the relief requested by entering a judgment of acquittal on all convictions in this case. II. MOTION FOR NEW TRIAL 21. When a Defendant has been sentenced, the Court, on motion of Defendant, may order a new trial. Ala.R.Crim.P. 24.1(a). 22. The Court may grant the motion for the reason that the verdict is contrary to law or to the weight of the evidence; or if for any other reason the defendant has not received a fair and impartial trial. Ala.R.Crim.P. 24.1(c)(1)-(2). 23. For the reasons set forth more fully below, the verdict is contrary to law and to the weight of the evidence. Additionally, for the reasons set forth more fully below, the Defendant has not received a fair and impartial trial due to the Courts rulings and instructions on matters of law. (A) THE DNA EVIDENCE 24. Defendant maintains that the State failed to establish the reliability of the particular DNA testing procedures used to match the DNA recovered from the crime scene to Defendants DNA. Furthermore, Defendant maintains that the State failed to establish the relevancy of said testing procedures at trial. 25. Defendant maintains that, at trial, his trial counsel objected to the admissibility of said expert testimony and other evidence offered to establish the purported DNA match on the basis that the reliability of such evidence had not been established. 26. Once the admissibility of this evidence was contested, the Court was required to hold a hearing, outside the presence of the jury, to determine whether the proponent of the evidence

had sufficiently established the reliability and relevancy of the challenged evidence. See Ala. Code (1975) 36-18-30, see also Turner v. State, 746 So.2d 355, 361 (Ala. 1998). 27. Defendant maintains that the Court failed to hold a hearing outside the presence of the jury after his trial counsel raised the challenge, and, as a result, the admissibility of such evidence was error, because the jury was mislead into believing that the offered DNA comparisons resulted in an accurate match. (B) INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL 28. Defendant further maintains that after said evidence was admitted by the Court, his counsel failed to adequately cross-examine the States expert about whether the DNA testing procedures employed in this case were, in fact, performed without error. Defendant further maintains that his trial counsel raised no meaningful challenge to the expert testimony and DNA evidence, after such evidence was admitted by the Court. 29. The purported DNA evidence was on the only evidence offered by the State to link Defendant to the crime. 30. Defendant maintains that his trial counsel failed to consult with a DNA testing expert, despite having more than four years to prepare for trial. Defendant further maintains that had his counsel consulted with said expert, Defendant could have challenged the weight of the DNA evidence offered by the state. 31. Defendant maintains that because his trial counsel failed to consult with said expert, and because his trial counsel presented no witnesses in his defense, he was denied effective assistance of counsel. 32. The Sixth Amendment guarantees criminal defendants the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970). Moreover, the right is denied

when a defense attorney=s performance falls below an objective standard of reasonableness and thereby prejudices the defense. Wiggins v. Smith, 539 U.S. 510 (2003). 33. The U.S. Supreme Court set the standard for ineffective assistance claims in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the U.S. Supreme Court stated that: The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. [A] defendant need not show that counsel=s deficient conduct more likely than not altered the outcome in the case. The defendant must show that there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [A] court should keep in mind that the principles we have stated do not establish mechanical rules. Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results. 104 S.Ct. at 2067-2069 (emphasis added); See also Ex Parte Lawley, 512 So.2d 1370 (Ala.1987). 34. With regard to the prejudice requirement, a movant must establish that, but for counsel's deficient performance, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. Furthermore, the movant must establish that counsels errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Lockhart, 506 U.S. at 369 (quoting Strickland, 466 U.S. at 687). 35. To establish ineffective assistance, the movant must also provide factual support for his contentions regarding counsels performance. Smith v. White, 815 F.2d 1401, 1406-07 (11th

Cir.), cert. denied, 484 U.S. 863, 108 S.Ct. 181,98 L.Ed.2d 133 (1987). Bare, conclusory allegations of ineffective assistance are insufficient to satisfy the Strickland test. Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991); Stano V. Dugger, 901 F.2d 898, 899 (11th Cir. 1990) (citing Blackledge, 431 U.S. at 74,97 S.Ct. at 1629). 36. The instant case is not a case where tactical decisions are being criticized as ineffective, but in effect trial counsel did not take reasonable steps to defend. See Luke v. State, 484 So.2d 531 (Ala.Crim.App. 1985), cert. den. (Ala. 1986). In Cave v. Singletary, the U.S. Supreme Court stated in: A[T]he mere incantation of the word >strategy= does not insulate attorney behavior from review. The attorneys choice of tactic must be reasonable under the circumstances . . . [T]he question of whether a decision was a tactical one is a question of fact . . . . However, whether this tactic was reasonable is a question of law. Cave v. Singletary, 971 F.2d 1513, 1518 (11th Cir. 1992). 37. Defendant contends his trial attorney was ineffective for a number of reasons that are more fully set out below. 38. Defendants trial counsel was ineffective for failing to properly investigate sources of evidence which were crucial to his defense. See Magwood v. State, 791 F.2d 1438 (11th Cir. 1979); Davis v. State, 586 F.2d 1214 (5th Cir. 1979) reh. den. 601 F. 2d 586, vacated 446 U.S. 903, on remand 623 F.2d 366; Waldrop v. State, 523 So.2d 475 (Ala. Crim. App. 1987) cert. den. (Ala. 1988). 39. In United States v. Yizar, 956 F. 2d 230, 232-33 (11th Cir. 1992) it was held that failure of counsel to interview government witnesses, to conduct basic discovery, or to consider potential defense witnesses was prejudicial. In Kimmelman v. Morrison, 477 U.S. 365, 385 (1986), it was held to be ineffective assistance when counsel failed to conduct any pretrial

discovery and failed to file timely pre-trial motions to suppress illegally seized evidence. 40. In U.S. v. Rowe, 446 F. Supp. 1039, 1044, 1045 (N.D. Ill. 1978) it was stated that: AWhen inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had the defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged the trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy.@ 41. In the instant case, Defendant repeatedly informed trial counsel that he was not present at the scene on the date of the murders. Defendant requested trial counsel to investigate his whereabouts on the date in question, which was more than four months before his arrest and pre-trial detention. Trial counsel failed to adequately investigate Defendants whereabouts on said date, despite having the ability to contact Defendants employer, review his bank and/or cell phone records, and interview his family, friends, and associates. Trial counsels failure to investigate this defense resulted in effective assistance and prejudiced defendant by prohibiting him from presenting any meaningful defense. 42. Trial counsel did not call any witnesses. For several months prior to trial, Defendant specifically instructed trial counsel to interview Ulanda Lewis, his fianc and the mother of his two children, for purposes of testifying at trial. If given the opportunity, Ms. Lewis would have testified to Defendants good character and reputation for peacefulness, particularly since he was released from prison on the first murder charge. Ms. Lewis would have testified to Defendants care and support for her and their two children, his determination to turn his life around from the mistakes of his youth, and his consistent good deeds toward others. 43. The defendant=s character and reputation were relevant in this case. Because the indictment stated that Defendant had previously been convicted of murder, trial counsel should have presented character witnesses to explain and to mitigate Plaintiffs role in the previous 10

conviction and to explain his reformed character since being released from prison on that prior conviction. The failure of trial counsel to present any character witnesses prejudiced Defendant in that the jury likely believed that Defendant must have committed the crime charged because he had previously been convicted of murder. 44. Had the defendant placed character and reputation witnesses into evidence the defendant would have been entitled to a jury charge regarding same. In fact the defendant would have been entitled to an instruction from the Court that good character itself in connection with all the evidence could generate a reasonable doubt and entitle the defendant to an acquittal. See Kilpatrick v. State, 37 Ala. app. 165, 168, 66 So. 2d 441(1953); see also United States v. Darland, 626 F.2d 1235, 1237-1238, (5th Cir. 1980) , Harrison v. Dugger, 874 F. 3d 756, 764 (11th Circ. 1969) (Testimony about the appellants good character constituted the only means of showing that Harris was perhaps less reprehensible than the facts of the murder indicated.). 45. Trial Counsels failure to call any witnesses, including character witnesses, for Defendant constituted ineffective assistance. 46. Furthermore, trial counsel failed to properly investigate this case during the four-year period preceding the trial. 47. An attorney has a duty to conduct a reasonable investigation, including an investigation of the defendants background, for possible mitigating evidence, A Porter v. Singletary, 14 F. 3d 554, 557 (11th Cir. 1994). A[T]he failure to [investigate] may render counsels assistance ineffective.@ Baxter v. Thomas, 45 F. 3d 1501, 1513 (11th Cir. 1995). 48. An attorney may, under some circumstances, make a strategic choice not to conduct a particular investigation, see Dobbs v. Turpin, 142 F. 3d 1383, 1387 (11th Cir. 1998). A particular decision not to investigate must be directly assessed for reasonableness in all the

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circumstances, applying a heavy measure of deference to counsel=s judgments. Id. 1387-88 (quoting Strickland, 466 U.S. at 691 , 104 S. Ct. at 2066). 49. Effective representation of counsel encompasses the independent duty to investigate and prepare the case. Dill v. State, 484 So. 2d 491 , 497 (Ala.Crim.App. 1985) (cited in State v. Terry, 601 So. 2d at 164). 50. Failure to investigate and failure to put on witnesses cannot be categorized as effective trial strategy. 51. A trial counsel has the duty to exercise diligence in preparing a case for trial and in procuring witnesses. Weaver v. State, 401 So. 2d 344 (Ala.Crim.App. 1981). 52. A strategic decision cannot be reasonable when the attorney has failed to investigate his options and make a reasonable choice between them. Horton v. Zant, 941 F. 2d 1449 (11th Cir. 1991). 53. Moreover, when a lawyer fails to conduct a substantial investigation into any of his client=s plausible lines of defense, the lawyer has failed to render effective assistance of counsel. House v. Balkcom, 725 F. 2d 608, 615 (11th Cir. 1984). Failure to investigate a particular defense falls below the customary level of skill and knowledge required when only one defense is available. Profitt v. Waldron, 831 F. 2d 1245 (5th Cir. 1987); Beavers v. Balkcom, 636 F. 2d 114 (5thCir. 1981). See also Bouchillon v. Collins, 907 F. 2d 589, 597 (5th Cir. 1990). 54. In this case witnesses were available to testify to critical matters in support of Defendants defense. Defendant had other witnesses available, none of whom met with his attorney, most of all whom his attorney knew of, but never interviewed. 55. Accordingly, trial counsels performance was inadequate in this regard. (C) EVIDENCE INSUFFICIENT TO SUSTAIN CONVICTION

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56. In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485, 489 (Ala. Cr. App. 1984). However, even under this stringent standard, and for the reasons stated above, the evidence was not sufficient to convict Defendant of multiple counts of capital murder, subjecting him to a life without parole sentence for crimes he was not guilty of committing. VI. CONCLUSION 57. Defendant respectfully requests an evidentiary hearing on this motion. 58. In Murray v. Carrier, 477 U.S. 478, 496 (1986) it was stated that [T]he right to effective assistance of counsel . . . may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious and prejudicial. 59. Trial counsel=s representation of defendant fell below the range of reasonable representation. Based on the arguments presented herein and the evidence to be presented at an evidentiary hearing, if granted, it is reasonably predictable that the outcome of this case would have been different if trial counsel had prepared and represented defendant properly. 60. There are sufficient questions raised as to trial counsel=s competence to undermine confidence in the outcome of the trial. Strickland U.S. 694 at 466. 61. Therefore, Defendant prays that this Court will grant the requested relief by vacating the conviction and setting this case for a new trial. Respectfully submitted this 20th day of March, 2013. s/Susan G. James SUSAN G. JAMES The James Firm 600 South McDonough Street 13

Montgomery, Alabama 36104 Phone: (334) 269-3330 Fax: (334) 263-4888 E-mail: sgjamesandassoc@aol.com Bar No: JAM012 CERTIFICATE OF SERVICE I hereby certify that on March 20, 2013, I electronically filed the foregoing with the Clerk of Court using the Alafile system, which will send notification of such filing to the following: William Starnes, 100 North Side Sq., Huntsville, 35801. /s/Susan G. James SUSAN G. JAMES

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